Customs Ruling HQ H322233 - Coastwise Transportation; Offshore Cable; Cable Protection Materials; 46 U.S.C. § 55102; 46 U.S.C. § 55103; 46 U.S.C. § 55109; 19 C.F.R. § 4.80a; 19 C.F.R. § 4.80b.

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HQ H322233
Sep 02, 2022

Type : Carriers • HTSUS :
Modified by: H327804 Related: 103692; 109108; 109910; 115646; 113223; 109412; 115431; 115333; 114833; 113711; 111591; 115531; 113838; H300962; W115601; H028458; H058647

VES-3-02-OT:RR:BSTC:CCR H322233 AMW

Constantine G. Papavizas, Esq.
Winston & Strawn LLP
1700 K Street, NW
Washington, DC 20006

RE: Coastwise Transportation; Offshore Cable; Cable Protection Materials; 46 U.S.C. § 55102; 46 U.S.C. § 55103; 46 U.S.C. § 55109; 19 C.F.R. § 4.80a; 19 C.F.R. § 4.80b.

Dear Mr. Papavizas:

This letter is in response to your ruling request, submitted on December 7, 2021, on behalf of [ ] regarding whether the installation of offshore cable and associated activities by non-coastwise qualified vessels over the U.S. outer continental shelf (“OCS”), as described below, would violate the coastwise laws. Our decision follows.

FACTS

The following facts are from your December 7, 2021, ruling request. Your client proposes to transport and install electric transmission cable on the seabed off the coast of [ ] in connection with the construction of a wind energy project to be installed on the U.S. outer continental shelf. You anticipate that the cable laying will occur [ ].

Your client will utilize a non-coastwise-qualified Cable Installation Vessel (the “CIV”), the [ ]. Your client anticipates that the CIV may visit the following ports during the operation: [ ]. You state that the cable will arrive at the project site on board the CIV itself from a U.S. or foreign port or will be delivered to the CIV from another non-coastwise-qualified vessel from a foreign port. Any cable loaded onto a non-coastwise-qualified vessel other than the CIV, will be either: (1) transported to a U.S. port to be unloaded (and subsequently loaded onto the CIV); or (2) unloaded onto the CIV within U.S. territorial waters. You propose that any an excess cable not placed by the CIV along the designated route will either be: (1) returned to its point of origin in the United States to be unloaded; or (2) unloaded at a different U.S. port “if the quantity left over is de minimis.”

During the course of the operation, the CIV will place cable to both connect the subject wind turbine towers to each other or to an offshore substation (known as the “array cable installation”) and to connect the offshore wind farm to the onshore electrical grid (known as the “export cable installation”). The cable may be placed in stages, meaning that when the CIV depletes a roll or portion of cable, it will then attach a new section of cable to the previously placed portion. To do so, the CIV would recover the end of the previously placed, underwater portion and join it to the cable on board the vessel before proceeding to lay the remaining cable. For cable placed in U.S. waters near the shore, a coastwise-qualified vessel will be used to recover the cable and pull it to a land connection.

Much of the cable will be embedded into the seabed using a tracked underwater remotely operated vehicle (“ROV” or “trenching machine”), likely the [ ]. The trenching machine will use a chain cutter system combined with a series of water jets to cut through seabed sediment and rock to create a pathway on the seabed. The trenching machine will simultaneously guide the cable into place in this pathway by use of “cable loading arms,” which will load the cable into a cable trough, located above the chain cutter and forward of the jetting swords. The jetting system will be driven by two hydraulically driven water pumps to emulsify “sand-like” material. The trenching machine is capable of creating a pathway in the seabed to a maximum of 3 meters in depth, depending on ground conditions, and .6 meters wide.

Finally, once the cable has been placed on the seabed, the CIV may place “cable protection” over portions of the cable. Specifically, the CIV may place rock bags or concrete mats over cables on the seabed at such places where cables cross or otherwise require protection. The rock bags or concrete mats may be sourced either from a U.S. port or foreign port or indirectly from a foreign port where they would first be delivered to a U.S. port or a vessel in a U.S. port tied alongside a berth or anchored in U.S. territorial waters.

Finally, the CIV will carry a complement of approximately [ ] marine crew who will operate the vessel and approximately [ ] project crew tasked with performing functions associated with installing the cable. Occasionally, you state that representatives of the project developer will also board the CIV to perform project oversight and inspection functions.

ISSUES Whether the use of the trenching machine to create a seabed cable trench violates the coastwise dredging statute, 46 U.S.C. § 55109? Whether the subject cable placement and movement by a non-coastwise-qualified vessel violates the Jones Act, 46 U.S.C. § 55102? Whether the return of excess cable to a U.S. port by a non-coastwise-qualified vessel violates the Jones Act, 46 U.S.C. § 55102? Whether the transportation of concrete mats and other material on board a non-coastwise-qualified vessel to be placed over the subject cable violates the Jones Act, 46 U.S.C. § 55102? Whether the transportation of the marine and project crew on board a non-coastwise-qualified vessel violates the Passenger Vessel Services Act, 46 U.S.C. § 55103? LAW AND ANALYSIS

Your request presents five separate issues as outlined above. This ruling analyzes each below.

Issue One: Whether the use of the trenching machine to create a seabed cable trench violates the coastwise dredging statute, 46 U.S.C. § 55109?

Pursuant to 46 U.S.C. § 55109, only coastwise-qualified vessels may engage in dredging in the navigable waters of the United States, providing, in pertinent part:

[A] vessel may engage in dredging in the navigable waters of the United States only if—

(1) the vessel is wholly owned by citizens of the United States for purposes of engaging in the coastwise trade;

(2) the charterer, if any, is a citizen of the United States for purposes of engaging in the coastwise trade; and

(3) the vessel has been issued a certificate of documentation with a coastwise endorsement under chapter 121 of this title or is exempt from documentation but would otherwise be eligible for such a certificate and endorsement

Dredging is defined as “excavation” by any means:

The word “excavate” is derived from the Latin word meaning to hollow out. Its common, plain and ordinary meaning is to make a cavity or hole in, to dig out, hollow out, to remove soil by digging, scooping out or other means. The common plain and ordinary meaning of the word “dredging” is the removal of soil from the bottom waters by suction or scooping or other means.

CBP (to include its predecessor, the U.S. Customs Service) has consistently held that the term “dredging” within the meaning of 46 U.S.C. § 55109, is “the use of a vessel equipped with excavating machinery in digging up or otherwise removing submarine material.” See HQ 103692 (Dec. 28, 1978, published as Customs Service Decision (C.S.D.) 79-331); HQ 109108 (Nov.13, 1987); HQ 109910 (Jan. 26, 1989, published as C.S.D. 89-64).

CBP has nevertheless held that the use of certain devices to create underwater trenches for the purpose of cable laying does not constitute “dredging.” In particular, CBP has reasoned that the use by cable-laying vessels of cable-burial devices employing a jetting action resulting in the emulsification of the seabed surrounding the cable does not constitute an engagement in dredging. See, e.g., HQ 115646 (Apr. 12, 2002). Furthermore, CBP has also determined that the use of “a share or plow and cutting disc” that creates “a very narrow ‘slice” of the seabed under which the cable is buried is not an engagement in dredging.” See, e.g., HQ 113223 (Sept. 29, 1994) (relating to the use of an underwater trencher digging a 300 mm width trench) and H300962 (Apr. 14, 2022) (relating to the use of a trenching machine using water jets and a “cutter” capable of creating a trench up to 3.1 meters deep and .6 meters wide). Specifically, CBP has reasoned that the use of a jetting tool to “temporarily lift” a “narrow ‘slice’” of the seabed amounts to a “temporary manipulation of the seabed” as opposed to the creation of a furrow or trench by operation of a share or plow and disc cutting wheel. See HQ 109412 (Mar. 29, 1988), published at C.S.D. 88-7.

In the present matter, you have provided a detailed description and technical depictions demonstrating that the trenching machine will use water “jets” and a “chain cutter” to create a path while simultaneously laying the subject cable. You state that the exact dimensions of the trench will be dependent on ground conditions, but the trenching machine is capable of creating a trench up to 3 meters deep and .6 meters wide. We find that the use of the subject trenching machine is consistent with the activity described in HQ H300962 (Apr. 14, 2022), HQ 115646 (Apr. 12, 2002), and HQ 113223 (Sept. 29, 1994) in that the machine will utilize jetting and cutting implements to create a narrow slice of seabed under which a cable will be laid and buried. This activity is therefore not “dredging” within the meaning of 46 U.S.C. § 55109.

Issue Two: Whether the subject cable placement and movement by a non-coastwise-qualified vessel violates the Jones Act, 46 U.S.C. § 55102?

The coastwise law applicable to the transportation of merchandise, known as the Jones Act, is found at 46 U.S.C. § 55102, and provides in pertinent part:

Except as otherwise provided in this chapter or chapter 121 of this title, a vessel may not provide any part of the transportation of merchandise by water, or by land and water, between points in the United States to which the coastwise laws apply, either directly or via a foreign port, unless the vessel—

is wholly owned by citizens of the United States for purposes of engaging in the coastwise trade; and has been issued a certificate of documentation with a coastwise endorsement under chapter 121 or is exempt from documentation but would otherwise be eligible for such a certificate and endorsement.

The coastwise laws generally apply to points in the territorial sea, which is defined as the belt, three nautical miles wide, seaward of the territorial sea baseline, and to points located in internal waters, landward of the territorial sea baseline. 33 CFR § 2.22(a)(2). In addition, Section 4(a)(1) of the Outer Continental Shelf Lands Act of 1953 (“OCSLA”), as amended by The William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, H.R. 6395, 116th Cong. § 9503 (2021), provides that the Constitution and laws and civil and political jurisdiction of the United States are extended to:

the subsoil and seabed of the outer Continental Shelf; all artificial islands on the outer Continental Shelf; installations and other devices permanently or temporarily attached to the seabed, which may be erected thereon for the purpose of exploring for, developing, or producing resources, including non-mineral energy resources; or any such installation or other device (other than a ship or vessel) for the purpose of transporting or transmitting such resources.

(Emphasis added.)

Accordingly, the OCSLA, as amended in 2021, extends U.S. jurisdiction to devices attached to the seabed of the OCS for the purpose of producing non-mineral energy such as wind energy.

Pursuant to 19 U.S.C. § 1401(c), the word “merchandise” is defined as “goods, wares, and chattels of every description, and includes merchandise the importation of which is prohibited, and monetary instruments as defined in section 5312 of Title 31.” For purposes of the Jones Act, merchandise also includes “valueless material.” 46 U.S.C. § 55102(a)(2). The CBP Regulations promulgated under 46 U.S.C. § 55102 provide that a coastwise transportation of merchandise takes place when merchandise laden at a coastwise point is unladen at another coastwise point, regardless of origin or ultimate destination. 19 CFR § 4.80b(a).

As an initial matter, we determine that the original cable placement operation does not constitute coastwise trade under the Jones Act. CBP has long held that the sole use of a vessel in laying pipe or cable between two coastwise points is not considered a use in the coastwise trade of the United States. See, e.g., HQ 115431 (Sept. 4, 2001), HQ 115333 (Apr. 27, 2001). The fact that the material is not landed as cargo but is only paid out in the course of the installation operation makes such operation permissible (i.e., “paid out/not unladen”). Further, since the use of a vessel in pipe or cable laying is not a use in the coastwise trade, a non-coastwise-qualified vessel may carry pipe or cable which is laid between such points. However, the transportation of pipe or cable by any vessel other than the vessel that is laying cable or pipe to a cable or pipe-laying location at a point within U.S. territorial waters would be considered coastwise trade and would therefore have to be accomplished by a vessel meeting the statutory requirements entitling it to engage in such trade. See, e.g., HQ 114833 (Apr. 20, 2000). In line with these rulings, your request describes a scenario in which the subject cable will either arrive with the CIV from a foreign port or will be laden at a U.S. point and will be paid out from a dedicated Cable Vessel, the [ ], onto the seabed of U.S. territorial waters and the OCS. As such, the proposed use of the non-coastwise-qualified CIV to lay cable within U.S. territorial waters and on the OCS would not be in violation of the Jones Act, 46 U.S.C. § 55102. Similarly, we determine that the process in which previously placed cable ends may be picked up and connected with additional cable does not constitute coastwise trade. CBP has previously confirmed that the use of a non-coastwise-qualified cable vessel to pick up cable and connect it to another section before continuing to lay cable on the seabed “still constitute[s] a cable-laying operation” and is not coastwise trade under the Jones Act. See, HQ H300962 (Apr. 14, 2022) (citing HQ 113711 (Nov. 26, 1996)). Accordingly, in this matter, the movement of the cable to combine it with additional cable sections or to connect that cable to an offshore structure would not constitute coastwise trade in violation of the Jones Act, 46 U.S.C. § 55102. Issue Three: Whether the return of excess cable to a U.S. port by a non-coastwise-qualified vessel violates the Jones Act, 46 U.S.C. § 55102? The coastwise law applicable to this portion is again the Jones Act, 46 U.S.C. § 55102, which prohibits the coastwise transportation of “merchandise” between coastwise points by non-coastwise-qualified vessels. As such, in order to determine whether the proposed use of the CIV to return portions of cable to certain U.S. points violates the Jones Act, this section analyzes (1) whether the material transported constitutes “merchandise” under the Jones Act, and (2) whether the transportation will occur between two coastwise points. Pursuant to 46 U.S.C. § 55102: “[m]erchandise includes (1) merchandise owned by the United States Government, a State, or a subdivision of a State; and (2) valueless material.” As such, any cargo, regardless of value, is generally considered merchandise for the purpose of the Jones Act. CBP has previously determined that cable transported but not paid out onto the seabed by a vessel is merchandise. See, e.g., HQ 111591 (May 18, 1992) (“The carriage of cable by a foreign-built cable-laying and repair vessel from its point of lading in the United States to a second point in the United States…constitutes a violation of [the Jones Act].”). Accordingly, any excess cable not paid out by the CIV constitutes merchandise under the Jones Act. Next, we consider whether the transportation occurs between two coastwise points. Your request outlines two scenarios in which cable laded at a U.S. port will be unladed, either: (1) at the original point of lading, or (2) a “de minimis” amount (defined in your request as five percent or less of the original cable) will be transported to a different U.S. point. With respect to the first method of return (i.e., return to the point of lading) we determine that no violation of the Jones Act will occur should the CIV return excess cable to the exact coastwise point at which it was laded onto the vessel. We note, however, that what constitutes a “coastwise point” in this context is construed narrowly. CBP regulations stipulate that the term “coastwise points” includes “points within a harbor.” See 19 C.F.R. § 4.80(a). In addition, in HQ W115601 (Feb. 28, 2002), CBP determined that, although merchandise may be laden and unladen at the same location without violating 46 U.S.C. § 55102, a violation would occur if the merchandise was unladen even a vessel width from the dock where it is laden (with no contact with the dock at any point). See also, H028458 (Jun. 19, 2008) (citing HQ W115601). With respect to the second method of return (i.e., transportation of a “de minimis” amount of cable to a different coastwise point) we determine that a violation of the Jones Act would occur if any amount of unused cable is transported to a different coastwise point than the point at which it was laden. Your submission cites C.S.D. 82-136 (Jun. 7, 1982) for the proposition that, “CBP has also indicated that a de minimis amount of cable (five percent or less of the total amount laid) can be transported by a foreign vessel between two U.S. ports.” However, CBP has since modified its prior rulings, pursuant to its authority under 19 U.S.C § 1625, to clarify that non-coastwise-qualified vessels may not transport items of de minimis value between coastwise points. See Customs Bulletin and Decisions, Vol. No. 53, No. 45 at 93 (Dec. 11, 2019). In doing so, CBP has clarified that Public Law 100-329 (100 State. 508; effective June 7, 1988) amended the Jones Act to clarify that the term “merchandise” includes “valueless material.” See 46 U.S.C. § 55102(a)(2). As such, CBP noted, “there is no basis for a de minimis value rule in determining whether an item is merchandise under the Jones Act.” Accordingly, we determine that the transportation of unused cable laden at one U.S. point on board the non-coastwise-qualified CIV and unladen at a different U.S. point would result in a violation of the Jones Act. Issue Four: Whether the transportation of concrete mats and other material on board a non-coastwise-qualified vessel to be placed over the subject cable violates the Jones Act, 46 U.S.C. § 55102? The coastwise law applicable to this portion is again the Jones Act, 46 U.S.C. § 55102, which prohibits the coastwise transportation of “merchandise” between coastwise points by non-coastwise-qualified vessels. And, once again, in order to determine whether the placement of concrete mats or other protective material over the electric transmission cable violates the Jones Act, this section analyzes (1) whether the material transported constitutes “merchandise” under the Jones Act, and (2) whether the transportation will occur between two coastwise points. Pursuant to 46 U.S.C. § 55102: “[m]erchandise includes (1) merchandise owned by the United States Government, a State, or a subdivision of a State; and (2) valueless material.” As such, any cargo, regardless of value, is generally considered merchandise for the purpose of the Jones Act. CBP has also held, however, that “vessel equipment” or “equipment of the vessel” is not included within the general meaning of merchandise. “Vessel equipment” has been defined as portable articles, “necessary and appropriate for the navigation, operation or maintenance of the vessel and for the comfort and safety of the persons on the board.” Treasury Decision 49815(4) (Mar. 13, 1939). Items considered “necessary and appropriate for the operation of the vessel” are those items that are integral to the function of the vessel and are carried by the vessel. This may include those items that aid in the installation and construction of offshore infrastructure. The fact that an item is returned to and is not left behind on the seabed is a factor that weighs in favor of an item being classified as vessel equipment, but is not a sole determinative factor. Whether such articles constitute vessel equipment is a fact-specific, case-by-case determination. HQ H058647 (May 18, 2011). In HQ H300962 (Apr. 14, 2022), we discussed that CBP has previously determined concrete mats or other protective material placed over pipelines situated on the OCS to be vessel equipment. See HQ 115531 (Dec. 3, 2001) and HQ 113838 (Feb. 25, 1997). These rulings were based on an interpretation that the concrete mats were “necessary for the accomplishment of the mission of the vessel.” See HQ 113838 (the placement of sandbags or concrete mats “between and over” OCS pipelines “does not constitute the use of the vessel in coastwise trade provided such articles are necessary for the accomplishment of the mission of the vessel…”) (emphasis added). However, CBP has since revoked the “mission of the vessel” concept as a principle for determining whether items qualify for consideration as “vessel equipment,” pursuant to its authority under 19 U.S.C § 1625. See Customs Bulletin and Decisions, Vol. No. 53, No. 45 at 84 (Dec. 11, 2019). In doing so, CBP has clarified that the scope of vessel equipment includes items considered “necessary and appropriate for the navigation, operation or maintenance of the vessel,” as outlined above. The purpose and result of CBP’s December 2019 action was to narrow the scope of what had been interpreted to be “vessel equipment” by, in part, eliminating certain rationales such as “mission of the vessel.” As a result, we must determine whether the subject mats or other protective material constitute “vessel equipment” under the revised standard. Your request states that the CIV itself may place rock bags or concrete mats over cables on the seabed as necessary to provide protection to the cable, such as in locations where cables cross. In HQ H300962 (Apr. 14, 2022), CBP determined that cable-protection material carried by a cable installation vessel did not constitute “vessel equipment” because such items are not utilized to aid the cable installation itself, and are thus “dissimilar from things used as tools for installation operations.” Similarly, CBP observed, the fact that the protection material will not be returned to the transporting vessel is also persuasive evidence that the objects are merchandise and not vessel equipment. As in H300962, the subject cable protection materials will not be used to aid in the operation of the CIV itself or in the actual installation of the subject cable. Rather, the material will be unladed on top of the subject cables and is intended to perform a function separate from that of the vessel (i.e., for protecting the cable after the vessel departs). As a result, we determine that the concrete mats or other protection material are merchandise. Because the subject mats or other protective material to be placed over the transmission cable constitute merchandise, we next determine if the proposed transportation of such materials occurs between coastwise points. To do so, we examine the points at which the subject material will be laded and unladed. Your request states that the material may be (1) laded directly at a foreign port; (2) laded directly at a U.S. port; or (3) transported by a foreign vessel to a U.S. port and either unloaded at the U.S. port and laded onto the CIV or transferred to the CIV from the transporting vessel while tied along side a berth or anchored in U.S. waters. With respect to the lading of the subject concrete mats or other protective material, we determine that scenarios (2) and (3) involve the lading of merchandise at a coastwise point while scenario (1) does not. Specifically, in scenario (2), cable-protection material will be laded at a U.S. port, a coastwise point. Scenario (3), meanwhile, contemplates the transfer of foreign-origin mats or other protective material from one non-coastwise-qualified vessel to a second such vessel at either a berth within a U.S. port or at anchor within U.S. territorial waters. Either way, this scenario also contemplates the lading of merchandise at a coastwise point (i.e., a U.S. port or point within U.S. water). In contrast, under Scenario (1), the mats or rocks will be laded onto a non-coastwise-qualified vessel at a foreign port and transported directly to the cable site.

With respect to the unlading of the subject mats or rocks, it is clear that the electric transmission cable is also a coastwise point. First, portions of cable resting in U.S. territorial waters are a coastwise point because the Jones Act clearly applies to points in the territorial sea, which is defined as the belt, three nautical miles wide, seaward of the territorial sea baseline, and to points located in internal waters, landward of the territorial sea baseline. 33 CFR § 2.22(a)(2). Second, CBP has also determined that those portions of electric transmission cable on the U.S. OCS also constitute a coastwise point. See H300962 (Apr. 14, 2022) (determining that the text of OCSLA as well as the underlying legislative history extend U.S. jurisdiction to electric transmission cables placed on the U.S. OCS). Based on the foregoing, to the extent the concrete mats or other protective material are transported on board a non-coastwise-qualified vessel from one U.S. point (e.g., scenarios (2) and (3) outlined above) to the subject transmission cable, which itself constitutes a coastwise point, then such transportation on board a non-coastwise-qualified vessel would be in violation of the Jones Act, 46 U.S.C. § 55102. In contrast, the transportation of concrete mats or other protective material from a non-coastwise point, as in scenario (1), does not constitute coastwise trade in violation of the Jones Act. Issue Five: Whether the transportation of the marine and project crew violates the Passenger Vessel Services Act, 46 U.S.C. § 55103?

Pursuant to the Passenger Vessel Services Act (“PVSA”), 46 U.S.C. § 55103, in relevant part:

(a) In General. Except as otherwise provided in this chapter or chapter 121 of this title, a vessel may not transport passengers between ports or places in the United States to which the coastwise laws apply, either directly or via a foreign port, unless the vessel-

is wholly owned by citizens of the United States for purposes of engaging in the coastwise trade; and

has been issued a certificate of documentation with a coastwise endorsement under chapter 121 or is exempt from documentation but would otherwise be eligible for such a certificate and endorsement.

Your request states that the non-coastwise-qualified CIV will transport a complement of approximately [ ] “marine” crew and approximately [ ] “project” crew responsible for cable installation. You state that the “marine” crew is responsible for the navigation and operation of the CIV. In addition, you state the “project crew” and “project company representatives” will each perform a function related to the installation of the cable and that “[e]ach is either a workman, technician, engineer, or supervisor who is required to be on board….” To the extent that the individuals will be engaged in any shipboard activities while traveling on the CIV between coastwise points that would be “directly and substantially” related to the operation, navigation, or business of the vessel itself, as would be the case under the facts herein submitted, such individuals would not be considered to be passengers. Accordingly, we find that the proposed activities in this case are directly and substantially connected with the operation and business of the vessel, which is the laying of submarine electric transmission cable. We therefore determine that the subject individuals are not “passengers” within the meaning of 46 U.S.C. § 55103 and 19 CFR 4.50(b).

HOLDINGS

The use of the subject trenching machine by the non-coastwise-qualified CIV to create a path along the seabed while simultaneously placing cable does not constitute “dredging” as contemplated by the coastwise dredging statute, 46 U.S.C. § 55109, and therefore would not be a violation of that law. The laying of electric transmission cable along the seabed does not constitute coastwise trade as contemplated by the Jones Act, 46 U.S.C. § 55102. As such, to the extent the cable is laden onto the non-coastwise-qualified CIV at a coastwise point and laid on the seabed in U.S. territorial waters or on the OCS, a violation of the Jones Act would not occur. The return of unused electric transmission cable on board the non-coastwise-qualified CIV to the same U.S. point at which it was originally laden does not constitute coastwise trade in violation of the Jones Act, 46 U.S.C. § 55102. In contrast, CBP does not recognize a “de minimis” amount of cable that may be transported on board a non-coastwise-qualified vessel between different coastwise points; the use of the CIV to do so would result in a violation of the Jones Act. The transportation of concrete mats and other material from one U.S. point to the subject electric cable constitutes coastwise trade under the Jones Act, 46 U.S.C. § 55102. CBP determines that such material is “merchandise” as contemplated by the Jones Act. As such, the use of a non-coastwise-qualified vessel to transport this material from one U.S. point to the subject cable, another coastwise point, would be in violation of the Jones Act. The transportation of the project crew on board the CIV would not be in violation of the PVSA, 46 U.S.C. § 55103, to the extent the crew are performing tasks on board the vessel that are directly and substantially related to the operation of the vessel.

Please note that 19 C.F.R. § 177.9(b)(1) provides that “[e]ach ruling letter is issued on the assumption that all of the information furnished in connection with the ruling request and incorporated in the ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect. The application of a ruling letter by a Customs Service field office to the transaction to which it is purported to relate is subject to the verification of the facts incorporated in the ruling letter, a comparison of the transaction described therein to the actual transaction, and the satisfaction of any conditions on which the ruling was based.” If the facts of the transportation and/or use of the vessel vary from the facts stipulated to herein, or CBP ascertains discrepancies based upon a review of any other pertinent information, this decision shall not be binding on CBP as provided for in 19 C.F.R. § 177(b)(1), (2) and (4), and § 177.9(b)(1) and (2).

Sincerely,

W. Richmond Beevers
Chief/Supervisory Attorney-Advisor
Cargo Security, Carriers, and Restricted Merchandise Branch
Office of Trade, Regulations and Rulings
U.S. Customs and Border Protection